Sharp County record., 1887-02-17
TRIAL BY JURY.
Sketch of It's Origin and Effect In
England.
Magma Charta and the Bulwark OF Her
Liberties-COntrast With "Battle-
right"-Origln and Present
Practice of Juries.

right"-Origtn ana Present
Practice of Juries.
From the remote period when law
becan to take form in this country,
trial by jury, or some process tanta-
mount thereto, has been an inherent
part of English jurisprudence. We
have never parted with it. We have
not seriously changed its condition.
In principle it is retained in its original
simplicity; and its value and antiquity
are admitted by all those writers who
have dealt with the subject. Its reten-
toni iealously, and even peremptorily,
insisted on in Magma Charta. That it
has been occasionally abused has not
diminished the admiration for it, and
time but confirms the judgment of our
early legal commentators in describing
it as the bulwark of our liberties. The
Norman attempt to substitute for
it trial by battle is at once a
proof of the part it played far back in
the national existence and of its
hold upon the English mind. 1t was
very soon found that trial by battle
was neither safe nor a fair way of
getting at the guilt or innocence of an
accused party. 1t seems, however, to
have been used in criminal and civil
cases and in military trial. The pro-
cess was somewhat peculiar. In case
of felony, the accused was at liberty to
follow up his plea of not guilty with q
declaration of his readiness to make
good the same with his body in fair
fight against the prosecutor. This be-
ing done, the court would appoint a
time and place for the battle, and it
was provided that the night before the
day of battle both parties should be
arraigned by the marshal and brought
into the field before the justices of the
court where the appeal was depending.
Then at the rising of the sun they were
to appear bare headed and bare
legged from the knee downward,
and bare on the arms to the elbow,
armed only with bastons an ell long
and four cornered targets; and before
they began the contest they had to
make oath that they had neither eaten,
nor drank, nor done any thing else by
ol Of i0rb no 10
pressed and the law of the devil exalt-
ed. The combat then began. If the ac-
cused were vanquished so that he could
not or would not fight longer, it was
within the power of the court to order
him to be hanged Immediately. If,
however, he could maintain the fight
till twilight, judgment was to be given
in his favor If, on the other hand, the
prosecutor became ''crying coward, "
the accused could recover damages and
might plead his acquittal. There was
this element of fairness in the proceed
ing, that if the prosecutor by
age or otherwise was unable to wage
battle, the defendant would be COM
peeled to put himself upon his country,
no champions being allowed in crimi-
nal cases. At the best, however, the
system had neither justice nor equity
to commend it, and it is not surprising
that trial by jury held its own against
it.
The origin of this "bulwark of our
liberties has never been clearly ascer-
tanned. 1t has been attributed to the
Greeks. 1t was in principle exercised
in ancient Rome, where a criminal
trial was conducted before presiding
judge and body of selected citizens
whose functions it was to determine
the guilt or innocence of the accused,
and who could exercise also the pre-
rogative of mercy. Some writers claim
that the system was in use among the
Britons, and there is very little doubt
that in substance it was prac-
ticed in the time of Ethelred. In
rOrSyuhS history OF jury 1rlal,
we are told that in the Anglo-Saxon
era courts were presided over by a
Reeve, who had no voice in the decis-
ion. and that the number of persons
who sat was usually twelve. The as
sertions of parties were admitted to be
conclusive, where supported by the
oaths of certain number of compurga-
tors. In matters of general concern, it
was usual, IN arriving at decision, to
appeal to the testimony of the neigh
bOrhood; and it seems also that sworn
witnesses were appointed in each dis
trict, their duty being to attest all bar
gains and transactions, in order that
they might be ready to give evidence in
case Of dispute. Every care, we are